James Woodward Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 750

Supreme Court New South Wales

Medium Neutral Citation: James Woodward Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 750 Hearing dates: 24 March 2014 Decision date: 27 March 2014 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: See [4] Catchwords: COSTS and final order - no issue of principle Category: Procedural and other rulings Parties: James Woodward Neale - First Plaintiff J.W. Neale Pty Ltd (Receivers and Managers appointed) - Second Plaintiff Commonwealth Bank of Australia trading as Bank of Western Australia Ltd - First Defendant Brett Stephen Lord - Second Defendant Stephen James Parbery - Third Defendant Secured Global Opportunity Limited - Fourth Defendant Representation: Counsel: JW Neale - First and Second Plaintiffs - (self-represented) P Dowdy - First to Fourth Defendants Solicitors: JW Neale - First and Second Plaintiffs - (self-represented) Norton Rose Fulbright - First to Fourth Defendants File Number(s): 2011/211735; 2011/401621 Consolidated

Judgment 1HIS HONOUR: On 24 March 2014 I gave judgment in this matter reserving for argument questions of costs and any further issues that required determination. I have received written submissions on costs on behalf of the Commonwealth Bank and SGOL. I have also heard brief oral submissions. Clause 12.1(b) of the General Terms for Business Lending dated December 2007 provides as follows: "You must pay or reimburse...all our costs in otherwise acting in connection with the Facility Documents such as exercising, enforcing or preserving rights (or considering doing so), or doing anything in connection with any inquiry by a government agency involving you, any of your Related Entities or any Guarantor". 2Costs is defined in cl 22 of the General Terms to mean: "Costs, charges and expenses and includes: (a) (legal costs) (including internal legal costs) on whichever is the higher of a full indemnity basis or solicitor and own client bases". 3The Commonwealth Bank and SGOL seek costs of the consolidated proceedings on the indemnity basis. In my view they are entitled to such costs in respect of the proceedings brought by the Commonwealth Bank and SGOL as falling within the meaning of "acting in connection with the Facility Documents" as described in cl 12.1 of the General Terms, but they are not entitled to costs on an indemnity basis with respect to the proceedings brought by Mr Neale and now dismissed. They are only entitled to the costs of those proceedings on the ordinary basis. 4I make the orders in the Short Minutes of Order which I have initialled, dated today's date and placed with the papers.